Principals in the second degree and accessories. Penalty on servants firing any house or outhouse through negligence. parish of Plumtree; there is no such parish as Normanton on the Would, in the county of Nottingham; but there are two parishes called Normanton in the county, one called Normanton on the Sour, the other Normanton on Trent. Gaselee, J. and Littledale, J. doubted whether the prisoner could be convicted on this indictment. The objection seemed to be more particularly applicable to the charge as to the outhouse, as there was a local description given to it which should be proved as laid, and even if the words on the Would could be rejected as surplusage in mentioning the parish, still there was no such parish as Normanton singly. But they thought the objection as to the outhouse not material, if the indictment were correct as to the stack of beans; and as to that, the first question would be, whether the setting fire to that were to be considered as of a local nature as to the parish, or whether it were to be considered in the same light as common larceny, which need not to be proved in the parish alleged, provided it be in the county, and if it should be put on the same ground as common larceny in this respect, then a question would arise, whether, as it was proved negatively that there was no such parish as Normanton on the Would in the county, the indictment could be sustained. And, upon a case reserved, the Judges present unanimously held that the offence of setting fire to the stack of beans had nothing of locality in it, and that there was no such place in the county could only be taken advantage of by plea in abatement, and the conviction was affirmed. (h) The punishment of principals in the second degree and of accessories has been already mentioned amongst the general provisions of the 1 Vict. c. 89. (i) In conclusion of this chapter, it may be mentioned, that by the 6 Anne, c. 31, s. 3, and 14 Geo. 3, c. 78, s. 84, if any menial or other servant, through negligence or carelessness, shall fire, or cause to be fired, any dwelling-house, or outhouse, and be convicted thereof, by oath of one witness before two justices, he shall forfeit 100%. to the churchwardens, to be distributed amongst the sufferers by such fire; and if he shall not pay the same immediately, on demand of the churchwardens, he shall be committed by the justices to some workhouse, or common gaol, or house of correction, for eighteen months, there to be kept to hard labour. (h) Rex v. Woodward, R. & M. C. C. R. 323. A question was also raised, but not decided in this case as to whether the building was an outhouse within the meaning of the 7 & 8 Geo. 4, c. 30. There seems no reason to doubt, although no CHAPTER THE FORTY-THIRD. OF MAIMING AND KILLING CATTLE. law for un IT has been holden that no indictment lies at common law for un- No indictment lawfully with force and arms maiming a horse. The indictment lies at common charged that the prisoner, on, &c., with force and arms at, &c. “ one lawfully vi et black gelding of the value of 30%., of the goods and chattels of one armis maiming William Collyer, then and there being, then and there unlawfully a horse. did maim; to the great damage of Collyer, and against the peace, &c." upon reference to the Judges after conviction, they all held that no indictable offence was stated in the indictment; that if the case were not within the Black Act, 9 Geo. 1, c. 22, now repealed, the fact itself was only a trespass; and that the words vi et armis did not imply force sufficient to support an indictment. (a) The 9 Geo. 1, c. 22, (commonly called the Black Act) was for a Statutes. considerable time the principal statute upon the offence of maliciously maiming and killing cattle. But the clause in that statute relating to offences of this description was repealed by the 4 Geo. 4, c. 54, by which a lesser degree of punishment was provided for such offences, and the enactment of the statute 9 Geo. 1, was made somewhat more general. The latter, however, having been repealed by the 7 & 8 Geo. 4, c. 27, the statute upon this subject at the present time is the 7 & 8 Geo. 4, c. 30. This statute, by sec. 16, enacts, "that if any person shall unlaw- 7 & 8 Geo. 4, fully and maliciously kill, maim, or wound any cattle, every such c. 30, s. 16. offender shall be guilty of felony, and being convicted thereof, shall Killing or be liable at the discretion of the Court, to be transported beyond cattle. maiming the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years; and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit) in addition to such imprisonment. The 1 Vict. c. 90, s. 2, recites this section, and that it is expedient 1 Vict. c. 90, to alter and amend the said recited act, and then repeals so much of s. 2. the said act "as relates to the punishment of persons convicted of any of the offences hereinbefore specified," and enacts that "every person convicted, after the commencement of this act (1st of October, 1837,) of any of such offences respectively, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years.' (a) Ranger's case, 1798, 2 East, P. C. c. 22, s. 16, p. 1074. As to the meaning of the word" cattle," in the 9 Geo. 1, c. 22. And by sec. 3, "it shall be lawful for the Court to direct such imprisonment to be with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not excceding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretion shall seem meet." As this statute relates to the offence of maiming, &c. "cattle" in general, it may be to introduce some of the cases in which proper the meaning of that word in the repealed clause of the 9 Geo. 1, c. 22, became the subject of decision. The 9 Geo. 1, c. 22, was considered as extending, and not as abridging, the offences described in the 22 & 23 Car. 2, c. 7. Where the prisoner had been convicted on an indictment framed on the 9 Geo. 1, c. 22, for killing a mare and a colt, it was moved in arrest of judgment; first, that the mare and colt were not averred in the indictment to be cattle within the meaning of the act; and, secondly, that the word cattle did not necessarily include horses, mares, and colts. In support of these objections, several statutes were cited, in which different sorts of animals were particularly specified, (b) and several others, in which "horses" and "horses and mares" seemed to be contradistinguished from and not included in the word "cattle." (c) But the Judges agreed unanimously that as the 22 & 23 Car. 2, c. 7, had made the offence of killing horses by night a single felony, the 9 Geo. 1, c. 22, was only to be considered as an extension of that act; and some precedents of capital convictions were cited upon this branch of the statute, though none of executions. It was, therefore, agreed that judgment of death should be given against the prisoner at the next assizes. (d) This point received a similar determination in subsequent cases.(e) And it is observed that it is plain that the legislature must have intended to include horses in the word "cattle," when in the statute of Car. 2, they speak of "horses, sheep, or other cattle;" and by the statute of George the First they exclude from clergy such as kill, &c., any cattle which latter statute was evidently intended to enlarge, and not to restrain, the description of the felony. (f) It was subsequently decided that pigs were cattle within the 9 Geo. 1. Upon a conviction for poisoning pigs, the point was saved, whether pigs were cattle within the act, and the Judges held that they were. (g) The same decision more recently took place with respect to asses. The prisoner was convicted under the act of maiming and wounding two asses, and Richards, C. B., saved the point whether asses were within that act; and, upon a case reserved, the Judges (eleven being present) held that they were. (h) (b) 3 & 4 Ed. 6, c. 19. 5 & 6 Ed. 6, c. 14, and 31 Geo. 2, c. 40, for regulating the sale of cattle. (c) 12 Car. 2, c. 4, (book of rates). 22 Car. 2, c. 13. 14 Geo. 2, c. 6. 15 Geo. 2, c. 34. But see the observation in 2 East, P. C. c. 22, s. 18, p. 1075, that the argument from the statutes 14 & 15 Geo. 2, will lose much of its force from adverting to the preamble of the first of those statutes. (d) Paty's case, Abingdon Sum. Ass. 1770. 2 Black. Rep. 721. 1 Leach, 72. 2 East, P. C. c. 22, s. 18, p. 1074. At the next assizes the prisoner was reprieved for transportation; and afterwards (upon a strong application from the country) he received a free pardon. (e) Mott's case, O. B. 1783. 1 Leach, 73, note (a). Moyle's case, cor. Buller, J., Bodmin Sum. Ass. 1791. 2 East, P. C. c. 22, s. 18, p. 1076. (f) 2 East, P. C. c. 22, s. 18, p. 1076. (9) Rex v. Chapple, Mich. T. 1804, MS. Bayley, J., and Russ. & Ry. 77. (h) Rex v. Whitney, Hil. T. 1824, MS. Bayley, J., and R. & M. C. C. R. 3. maiming," It was also held upon the 9 Geo. 1, c. 22, that the repealed As to the clause extended to such as should maim or wound any cattle, degree of though the cattle were not destroyed, which by the 22 & 23 Car. 2, & under the c. 7, was left a misdemeanor at most, punishable only by action 9 Geo. 1, c. 22. to recover treble damages. It was decided, therefore, upon the 9 Geo. 1, c. 22, that the maiming or wounding need not be mortal; The wounding and that the wounding need not even be such as to cause a perma- need not cause nent injury. Thus, upon an indictment which charged the prisoner, a permanent injury. in one count, with maiming, and in another with wounding a gelding; and, upon proof that he had maliciously, and with an intent to injure the prosecutor, driven a nail into the frog of the horse's foot, whereby the horse was rendered useless to the owner, and continued so at the time of the trial, but was stated to be likely to do well, and to be perfectly sound again in a short time, judgment was respited, after conviction, upon a doubt whether, as the horse was likely to recover, and as the wound was not a permanent injury, the offence was within the statute; but the Judges held the conviction right, and considered the word "wound " in the 9 Geo. 1, to be used as contradistinguished from a permanent injury, such as maiming. (i) The clause in the late act appears to admit of a similar construction. The prisoner was charged in different counts with having unlawfully, feloniously, and maliciously killed, maimed, and wounded a certain mare. The two first counts charged the prisoner with having unlawfully, feloniously, and maliciously killed the mare, against the form of the statute. The first, stating the means used by the prisoner for that purpose, namely, the pouring nitrous acid into the left ear of the mare, and, also, stating as a fact, that the prisoner thereby killed the mare, and the second count, merely stating as a fact, that the prisoner killed the mare; the third count, charged the prisoner with having unlawfully, feloniously, and maliciously maimed the mare, against the form of the statute; and the fourth count charged the prisoner with having unlawfully, feloniously, and maliciously wounded the mare, against the form of the statute. On the trial it was proved, that the prisoner did pour a quantity of nitrous acid, which he had shortly before purchased, into the mare's left ear; and that he had either also poured some of it into the left eye, or, what was more probable, that some of the acid, which he had poured into the ear, had run along a furrow which it had made from her left ear upon her left temple, and so into her left eye, and that he had thereby occasioned the immediate blindness of that eye. The mare continued to live, in extreme pain, about ten days, when, in order to put her out of her misery, she was stuck with a knife, and bled to death. Two surgeons stated, that the injuries which were done to the ear (which was produced) were not wounds but ulcers, though such ulcers would have turned to wounds. Upon this state of facts, the nitrous acid not having been the proximate and immediate cause of the death of the mare, and the surgeons having deposed that the nitrous acid had not produced what they could technically call wounds, the Court recommended the jury, if they were satisfied of the guilt of the prisoner, to find their verdict against him on the third count of the indictment, and to acquit him on the other (i) Haywood's case, 1801, 2 East, P. C. c. 22, s. 20, p. 1076, Russ. & Ry. 16. Pouring acid into the eye of a mare and thereby blind ing it, is a maiming within the statute. Wounds in flicted by a dog counts: the jury having found a verdict accordingly, a case was reserved upon the question, whether the injury done to the eye of the mare in the manner and by the means above stated, was a maiming within the meaning of the 7 & 8 Geo. 4, c. 30, s. 16; and the conviction was affirmed. (j) The prisoner was indicted under the 4 Geo. 4, c. 54, s. 2, for set at a sheep. feloniously wounding a sheep, and it appeared that he had set a dog at the sheep, and that the dog, by biting it, inflicted several severe wounds. Park, J. A. J., "This is not an offence at common law, and is only made so by statute; and I am of opinion that injuring a sheep by setting a dog to worry it, is not a maiming or wounding within the meaning of the statute." (k) Burning a building with a cow in it. Malice to the owner not necessary. If a person maliciously set fire to a building in which a cow is, and the cow is burnt to death by the fire, this is a killing within the statute. The prisoner was indicted under the 7 & 8 Geo. 4, c. 30, s. 16, for maliciously killing a cow, and it appeared that the building, in which the cow was kept, had been set fire to by the prisoner, and that the cow had been burnt to death in it. Taunton, J., "If the prisoner set this place on fire while the cow was in it, and the cow was thereby burnt to death, that is a killing the cow by him within the meaning of this act of Parliament." (1) Under the repealed clause of the 9 Geo. 1, c. 22, malice to the owner of the cattle was a necessary ingredient to constitute the offence there created, and numerous decisions took place as to the nature and proof of this malice, to which it is unnecessary to refer, as under the late statute the offence will be complete, whether it be committed from malice conceived against the owner, or "otherwise." (m) On the trial of an indictment under the 7 & 8 Geo. 4, c. 30, s. 16, for unlawfully and maliciously wounding cattle, it is not necessary to show personal malice against the owner of the property. It is enough that there was a mischievous motive, though not particular malice towards the owner. (n) It should seem that the indictment upon the late statute ought, (j) Rex v. Owens, R. & M. C. C. R. 205. See Rex v. Murrow, R. & M. C. C. R. 456, ante, vol. 1, p. 731. (k) Rex v. Hughes, 2 C. & P. 420. (1) Rex v. Haughton, 5 C. & P. 559. (n) Reeves Wilson's case, 1 Lew. 226. must have been directed against the owner |